Date of filing : 28.6.2017
Judgment : Dt.20.4.2018
Mr. Ayan Sinha, Member.
This is a complaint under Section 12 of the Consumer Protection Act, 1986, for the deficiency in service on the part of the OPs made by Sri Jyoti Prakash Kanungo, son of Late Subodh Chandra Kanungo by profession Advocate, by faith Hindu, residing at premises No.P/58, Green View, P.S.-Patuli, Kolkata-700 084 against M/s Great Eastern Trading Co. having its head office at 20, Old Court House Street, P.S.-Lalbazar, Kolkata-700 001 and Branch office at 433, Garia Main Road, P.S.-Netaji Nagar, Kolkata-700 084, praying for direction upon the OPs to return the sum of Rs.24,500/- which is the price of refrigerator along with interest @ 18% p.a., compensation of Rs.30,000/- for mental agony and harassment and litigation cost of Rs.30,000/-.
Facts in brief are that Complainant who is by profession an advocate on 6.6.2017 booked and purchased one refrigerator SAMSUNG RT 28K3753BS 253 LTRS from OP’s GARIA BRANCH against payment of Rs.24,500/- by a cheque being No.279185 dt.6.6.2017 drawn on SBI RAMGHAR BRANCH against which the OP issued receipt. The OPs also issued invoice being No.12/SA/1718/06737 Dt.6.6.2017 from the branch office mentioning the date of delivery of the refrigerator as 9.6.2017.
The Complainant requested the OP at the time of handing over the cheque for early delivery by disclosing the fact that the old refrigerator had not been cooling properly and all cooking items vegetables, fish and eggs, etc. were being damaged every day. One salesman of OP namely Mr. Raju advised Complainant to contact him over phone No.(9051923572) if the Refrigerator is not delivered on 9.6.2017. Accordingly, Complainant contacted him and got assured the same would be delivered within two days.
But OP did not deliver the Refrigerator although the cheque was encashed on 9.6.2017 and since 10.6.2017 Complainant constantly made contact with the OP for delivery of the refrigerator.
The Complainant also stated that due to this suffering he was not in a position to devote his mind in his profession and mentioned in his petition that he had suffered monetary loss amounting to Rs.4,000/-because a person who was willing to purchase the old refrigerator later refused to purchase the same for the delay. Subsequently the Complainant purchased a new refrigerator from a different Electronic shop “Harmony” at Patuli, Kolkata-84, to meet up his urgent requirement.
And for this Complainant filed a petition for amendment of complaint for deletion of prayer ‘A’ and the same was allowed by this Forum on 24.10.2017.
So, Complainant filed this case.
Notices were served upon OP. OP GREAT EASTERN TRADING CO. contested the case by filing written version and denied the allegations made out against them and stated that the Complainant is not a consumer and there is no specific allegations against the OP and further stated that this Forum does not have jurisdiction to entertain this case. The OP made attempt three times for delivery of the refrigerator to the residence of the Complainant but could not deliver the same but still ready to deliver.
Accordingly, the OP prayed for dismissal of this complaint case along with cost as because Complainant filed this case for the purpose of ulterior gain and to harass OP.
Complainant filed Affidavit-in-chief where he has reiterated the facts as mentioned in the petition. He has also mentioned that he purchased a new refrigerator from a different electronic shop to meet up his urgent requirement since the delivery was not done by OP despite several persuasion made by the Complainant from 10.6.2017 to 27.6.2017 and at this stage he does not have requirement for another refrigerator.
OP files questionnaire to which Complainant filed affidavit-in-reply. Similarly, OP filed evidence to which Complainant filed questionnaire against which OP filed affidavit-in-reply. OP did not appear for argument. Heard submission of Complainant in person who is also Ld. Advocate in this case. Complainant also filed brief notes on argument.
Main point for determination is to
- Whether there was a deficiency of service upon OP?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
On perusal of the documents filed by Complainant, it appears that Complainant paid Rs.24,500/- to the OP through cheque No.279185 dt.06.06.2017 for booking of one SAMSUNG Refrigerator No.RT28K3753BS 253 Litres and against which OP GREAT EASTERN BRANCH AT 433, GARIA MAIN ROAD, KOLKATA-700 084 issued Tax Invoice No.12/SA/1718/06737 dt.6.6.2017 in favour of the Complainant with date of delivery clearly mentioned as 09.06.2017. In this regard Complainant has filed original Tax Invoice for the same. Complainant has also filed Xerox copy of the SBI, RAMGARH BRANCH Pass Book A/C No.35132618042 from where it reveals that the said cheque was duly encashed on 9.6.2017. OP has admitted to this but with a plea that due to transport issue they could not deliver the refrigerator and on next day i.e. on 10.6.2017 the “Delivery Challan” was generated and the same is being annexed with their written version which surprisingly reveals that the said Invoice cum Delivery Challan was actually issued on 6.6.2017 itself with Sl.No.1102 which is struck off and hand written as SL-1121 with delivery date as 9.6.2017. OP has stated that they attempted three times i.e. 10.6.2017, 12.6.2017and 16.6.2017 but no authenticated evidence nor any letter addressed to Complainant has been filed by them to establish the facts that they really tried to deliver, except a hand written mere note on the corner of the delivery challan in Bengali and if we translate in English to read as “after 8 p.m. phone switched off” with dt.16.6.2017. If that be the case for 16.6.2017 attempted delivery our view why there were no such notes for 10.6.2017 and 12.6.2017 attempted delivery. On the contrary Complainant has mentioned he is an Advocate by profession and his wife retired as District Judge and ex-Principal Secretary, Law, Govt. of West Bengal and remains present 24 hours at her residence everyday and so, attempting delivery three times by OP is not justified. Moreover, we also find from the records that since the OP Great Eastern did not deliver the same, Complainant in his amended petition has stated he had to purchase refrigerator to meet his urgent requirement ultimately from Harmony House Pvt. Ltd., ½ & 1/3, Baishnabghata, Patuli Township H-Block, Kolkata-700 098, one Samsung Refrigerator R-Samsung-RT28M3044UT-BB by paying Rs.25,600/- vide Invoice No.PTU/CRE/0651/17-18 dt.10.7.2017 i.e. paying more price than OP’s selling price and secondly Complainant purchased the same after one month approx. In this regard, Complainant has filed the original Invoice of Harmony House. So, it is clearly understood that hardly anybody will invest his hard earned money twice within a month for a single commodity to harass OP by filing this case. As a matter of principle OP could have refunded the money to the Complainant if they really attempted three times for delivery, instead of harassing the Complainant and compelling him to file this case.
Thus we hold that there is deficiency in service on the part of the OPs by not delivering the refrigerator within the stipulated time compelling the Complainant to invest his money to buy a refrigerator again from a different shop and so Complainant is entitled to the relief as prayed for.
As such, Point Nos. (i) & (ii) are answered accordingly.
Complainant has also prayed for compensation of Rs.30,000/- towards harassment and damages along with litigation cost of Rs.30,000/- which is exaggerated. In our view the Complainant have suffered mental agony and harassment so the Complainant is entitled to compensation to the tune of Rs.10,000/-. Further the OP compelled the Complainant to file this case. So, the Complainant is entitled to the cost of Rs.5,000/-.
In our opinion, if a direction be given upon OPs to refund Rs.24,500/- to the Complainant along with compensation of Rs.10,000/- and litigation cost of Rs.5,000/- justice would be served.
Hence,
ordered
CC/344/2017 and the same is allowed on contest against the OPs.
The OPs are directed to pay Rs.24,500/- to the Complainant within 30 days from the date of this order.
The OPs are also directed to pay compensation of Rs.10,000/- and litigation cost of Rs.5,000/- to the Complainant within the aforesaid period, in default the total amount shall carry interest @ 9% p.a. from the date of this order till full realization.
Failing to comply the order will entitle the Complainant to put the order into execution under appropriate provision of C. P. Act.